NCSL Podcasts

The Evolution of the ADA | OAS Episode 210

Episode Summary

Two people with deep experience working in the area of disability rights--Eve Hill, one of the nation's top disability rights lawyers, and Nevada Assemblywoman Tracy Brown May, who's worked on numerous initiatives to aid those with disabilities—joined the podcast to discuss how the Americans With Disabilities Act has evolved.

Episode Notes

The Americans With Disabilities Act was signed into law in 1990, but who and what it covers has evolved over the decades. Behavioral health issues, long COVID or other conditions that substantially limit one or more major life activities can fall under the ADA. 

Joining the podcast are Eve Hill, one of the nation’s top disability rights lawyers and the policy and legislative counsel for the U.S. Department of Labor’s State Exchange on Employment & Disability or SEED, and Nevada Assemblywoman Tracy Brown-May, who has worked on numerous initiatives to aid those with disabilities. Both joined the podcast to discuss the current state of the ADA.

Hill explained how interpretation of the law has changed since the early ’90s when she started her law career, how it has been further altered by legislation and the substantial role state legislators can take in their states around the issue. Note that’s Hill’s personal observations do not represent those of the U.S. Department of Labor.

Brown-May explained how her background working with people with disabilities has informed her legislative efforts and her experience with fellow lawmakers who come to her for advice on how to address a disability-related issue in legislation.


Episode Transcription

Ed:     Hello and welcome to “Our American States,” a podcast from the National Conference of State Legislatures. I’m your host Ed Smith. 


EH:    So now we notice if people with disabilities aren’t there and that’s been really one of the great accomplishments of the ADA. Everybody now knows people with disabilities. We can no longer say well no person with a disability ever comes here.


Ed:     That was Eve Hill, one of the nation’s top disability rights lawyers and one of my guests on this podcast. My other guest is Nevada assemblywoman Tracy Brown-May who has worked on numerous initiatives to aid those with disabilities. Both joined the podcast to discuss the current state of the Americans with Disabilities Act. The ADA was signed into law in 1990, but who and what it covers has evolved over the decades. Our discussion touched on how behavioral and mental health issues, long COVID and other conditions that were not front of mind when the law first went into effect or issues of great concern now. Hill discussed how interpretation of the law has changed since the early 90’s when she started her law career. How it has been further altered by legislation and the substantial role state legislators can take in their states around the issue. 


           Brown-May explained how her background working with people with disabilities has informed her legislative efforts and her experience with fellow lawmakers who come to her for advice on how to address ADA related issues in legislation. Here is our discussion starting with Eve Hill.


Eve, welcome to the podcast.


EH:    Thanks for having me. I’m happy to be here. 


Ed:     Well Eve, you are almost universally described as one of the nation’s leading disability rights lawyers. I wonder if you could talk about what drew you into this practice and why it has been so important in your professional life. 


EH:    I joke that righteous indignation is my favorite emotion so this is the perfect practice for me. There is a lot to be mad about. I always wanted to be a silver rights lawyer and I graduated from law school around the time the ADA was passed. The ADA just seemed so sensible and it seemed so outrageous that people with disabilities hadn’t had any civil rights by then. So, I was hooked. And later as I continued in the practice, it became more personal as I was diagnosed with my own disability. I married a person with a disability. All my friends are people with disabilities. It grew into my community.


Ed:     I did a podcast with former Senator Tom Harkin a few years ago on the 30th anniversary of the signing of the ADA which you just referred to back there in 1990 and I wonder if you could walk us through as you were just beginning to say I think why the ADA legislation was passed in the first place. Why it was needed.


EH:    Well, it really begins before 1990 when Justin Dart carried out the Road to Freedom Tour and he went to all 50 states really highlighting the real experiences of people with disabilities and the lack of accessibility and blatant discrimination that people with disabilities were facing nationwide. So, disability right’s advocates across the country created a national dialogue about discrimination that they were facing and that woke Congress up both to the injustice of the situation and to the fact that by discriminating against people with disabilities, we were wasting their talents and rejecting their contributions and not allowing them to contribute to our Country. And so, this was a bipartisan effort in a way we don’t see much anymore. 


Ed:     So, I wonder if you could talk about some of the key provisions. I think just about everyone is familiar with many of the physical changes in our environment that came about as the result of the ADA. And maybe they’ve seen some accommodations for people in the workplace, but what would you sort of list out as the key things that were addressed in this?


EH:    Well, the ADA has three titles. Title I is employment. Title II is state and local governments. And Title III is public accommodations which are 12 categories of businesses, types of businesses that we all deal with that serve the public. And all three titles require a few buckets of things. First covered entities can’t discriminate or exclude people with disabilities from employment or government services or public accommodations either facially or by imposing discriminatory eligibility criteria. In addition, there’s affirmative action; not affirmative action, but an affirmative obligation to go a little bit beyond. We recognize that in order to incorporate people with disabilities, we have to change some things that we put in place assuming they wouldn’t be there. So, they all imposed affirmative obligations to provide reasonable accommodations and in employment reasonable modifications of policies in government and public accommodations. 


           Title II and Title III also require equally effective communication with people with communication disabilities so making sure that we can communicate with people who are deaf or hard of hearing, blind or visually impaired and so forth. And they all address the Title II and Title III address the built environment. Newly constructed buildings have to be fully accessible. Altered pieces of buildings have to be accessible and covered entities again have ongoing obligations to remove barriers and make their programs accessible.


Ed:     I mentioned the workplace and it sort of touched on some of that and I wonder what sort of challenges people have encountered in the workplace as they try to assert their rights under this legislation.


EH:    Well, the biggest challenge for a long time was the courts misunderstood how the ADA was supposed to work. They acted like civil rights was free cake. You had to be careful who you gave it to or you would run out. And so, they read the definition of disability very narrowly so people never even got to assert their rights. They were just found not to be disabled enough and Congress had to go back and amend the ADA to make clear that the definitions very broad and the focus of court should be on whether the discrimination happened; not whether or an employee was disabled enough. So, after the ADA amendments act of 2008, I think enforcement has been made easier. But the employment numbers for people with disabilities haven’t really improved a lot until quite recently and I don’t know whether that was part of the pandemic response or if employers are finally understanding their nondiscrimination obligation. But one of the biggest things the ADA has done is let people with disabilities out. Out of their homes. Out of institutions. Out into the workplace. Into schools and so forth so now we notice if people with disabilities aren’t there and that’s been really one of the great accomplishments of the ADA. Everybody now knows people with disabilities. We can no longer say well no person with a disability ever comes here and do people are ready for people with disabilities to be their customers and their colleagues.


           TM:  07:42


Ed:     Well, I think that that notion that the ADA has changed, that’s its evolved I guess maybe would be a better word, over the decades and I wonder specifically that might be in relation to things like behavioral health or long COVID you just sort of touched upon and other disabilities that maybe we hadn’t thought of at the inception of this in 1990.


EH:    Luckily the ADA was passed with a fairly general definition so it can apply to a lot of things as things evolve. So, to the extent any diagnosed condition substantially limits one of more major life activities, that’s a covered disability under the ADA. So behavioral health conditions that substantially affect a major life activity like concentrating is protected and long COVID because it substantially limits a myriad of major life activities is covered as well. And in fact, the ADA amendments act made clear that even episodic disabilities like behavior health disabilities, or long COVID are covered if they are substantially limiting when they are active. So, we don’t have to change the ADA in order to cover these things. They already fit within this very general definition that we have.


Ed:     I wonder, and I think you sort of touched on this, if you think there is an increasing awareness among employers about how the application of the ADA is changing in just these ways we are discussing.


EH:    I definitely think there is. There is a lot more information out there. It is easy to get. I rarely get responses from employers that they didn’t think they were covered or they didn’t know about the ADA. It really has gotten into the consciousness of the employer community. Employers are now aware of the fact that the ADA applies to them. Aware that it requires them to reexamine their assumptions about disabilities and to look at and reexamine how their jobs can get done.


Ed:     And let me wrap up with a question for you specifically for our audience which is legislators, legislative staff and others interested in state policy from your perspective as a lawyer who has worked on this for a long, long time is there any advice you’d like to share with them specifically?


EH:    That’s a great question. I think state legislators to look to their own state laws to see where they can fill gaps in the ADA. So, for example, the ADA only covers employers with 15 or more employees. But smaller employers are big sources of employment and the obligations for what a reasonable accommodation is take into account the size of the employer so the ADA won’t inhibit or hurt small business if they comply with this so states can extend ADA type obligations to small businesses. In addition, Title III of the ADA doesn’t provide for damages to no matter how outrageous the discrimination, no matter how terrible the harm to a person with a disability, the person can never be compensated for the harm they suffer from discrimination under Title III of the ADA. State laws don’t have to be so limited. And then finally I think states should consider going beyond the ADA and requiring affirmative efforts to recruit, hire and re-train employees with disabilities at least by government agencies. Such affirmative efforts hold so much promise in getting people with disabilities off government benefits and into the workforce that we really can’t afford not to try harder.


Ed:     Well Eve, thank you so much for sharing your time and your expertise on this topic and I really appreciate it. Take care.


EH:    No problem. Thank you.


Ed:     I’ll be right back after this short break with Assemblywoman Tracy Brown-May.


           TM:  11:40


           Assemblywoman, thanks so much for coming on the podcast.


TBM:Thanks so much for having me Ed. I appreciate the opportunity.


Ed:     Let me start by asking you how you came to get involved in working in the disability area both legislatively and professionally.


TBM:Thanks for the question. That’s one that I get kind of often as not many folks across the Country are really in this space, I have found that there are more than you would expect. My family was very involved in volunteering in our community in my small hometown. We were in and around Belchertown, Massachusetts, which had a state-run institution and so there were a number of kids that were living in the institution that did not have families that would regularly go and visit to my family was one of those families that would go and take kids home for the weekend. And so that was just something we did when I was growing up.


Ed:     That’s so interesting. I’m familiar with Belchertown because I went to college at UMass-Amherst, which is pretty close to Belchertown. Now let me ask you about how the ADA was implemented in Nevada. Has it been a case of challenges in some areas and other things have gone smoothly?


TBM:Yes. I think Nevada has really good individual self-advocates. I think that educating our parents and our family members and people with disabilities that are in this space is essential and we have done exceptional in that area in particular right. So, building those relationships with both our federal members and our state members to gain access into good advocacy in public policy. I think with regard to infrastructure though in particular right, I constantly work on curb cutoffs and safe accessibility for road users right building access. We have stairs or we still barriers that we have to face with regard to physical accessibility. 


           TM:  14:50


Ed:     That’s interesting. I guess I would have thought the physical accessibility would have been maybe the easier more clear-cut thing to do which brings me to the sort of the point that ADA exists both in the physical world and in the virtual world. Can you talk a little bit about that about the challenges of applying it in the virtual world?


TBM:Definitely. I have the honor of sitting on our senior citizens and adults with special needs legislative committee here and in here in just two days ago, we talked about the barriers that we are experiencing with the different types of communities and accessibility. I think that technical changes so quickly it’s really hard to keep up with the accessibility space and what the expectation is. Even our legislative counsel bureau staffer always trying to stay on top of what is the right technology to deploy in any situation. My husband wears hearing aids and so closed captioning is helpful for me as much as it’s helpful for him and I think that we have to get better at universal design and universal accessibility to help all of our people. But as technology evolves, we are seeing that are using it differently which I think helps the general community. That’s a space we are going to continue to invest in in Nevada in particular. Closed captioning for our hearing aids and American Sign Language. How do we build a way finding into our buildings for people who are blind or have low vision. How do we access braille as well an audio file to help people just be able to gain access to the same information. Making sure people with all types of disabilities have access to the same information is what we are trying to accomplish.


Ed:     I’m wondering if there are aspects of ADA that are easier to implement at the state level. Not to say that they have been, but it should be easier to do it at the state level than others.


TBM:I would like to think so. But for me hiring would be a big part of that right. How do we intentionally encourage people who may experience barriers to come in and apply for jobs right. How do we create interviewing processes that don’t identify a person’s disability but instead maybe work on what is their skills. How can we bring them in. Nevada has as an example employer right. We have tried to work on legislation that encourages our state divisions to hire people with disabilities to fill our vacancies because I think it is so important that we do that. Our numbers now tell us that about 25% of our population are people who identify as having a disability right. So why are we not hiring 25% of our working staff to be able to be representative of that demographic. I think it is really important. So, for me, that would be our first policy and something we should be able to answer really quickly. The second piece of it is technology and accessibility through technology. We are broadcasting meetings on a regular basis. It is something we do. We have open meeting lots so ensuring that all of our constituents have access to what’s happening in the state legislature. I think that we should be able to have good solutions there. We should be able to deploy that because technology does change so quickly right so how can we deploy those?  I would think those are two very easy ways.


           But believe it or not, one of the ways I really wanted to focus on was accessibility on our business cards. So many of our legislative bodies still have paper business cards right. It was really hard to get braille on a business card. It was costly. People did not access that technology right to be able to include people who are blind and read braille. The font was very small so if have low vision and have difficulty reading. So how do we deploy a business card as a state legislator. You’d think that would be pretty easy to do. It turned out it was really hard.


Ed:     The ADA has been around since 1990. I think everybody probably knows or certainly everybody in the legislatures knows there is a law, but I wonder particularly if definitions of disability have expanded, how are aware are your colleagues of the nuances?


           TM:  19:05


TBM:I would say that based on each individual numbers experience, there will be different varying levels of understanding. Some of our members are employers and so they would understand ADA employment law. Some of them are business owners so they would understand ADA inaccessibility right. So, I think it’s the application of the ADA in their individual lives. So, if I go back a few years when I first moved to Nevada, I was a corporate attorney and development manager with a large gaming company here and the ADA was just signed into law. So, it was one of the first classes that I trained for the senior level management team at this gaming company. I think we still have misunderstandings relative to the initial pieces that were introduced right. What is a barrier to employment. What is a reasonable accommodation. What is the definition of a disability as recognized under federal law. I think that there is a lot of gray area in the interpretation of that for many of our constituents including many of our members. You want to do the right thing generally thinking. I do truly believe our legislators come at this work with their very best intention. It is why we serve in the legislative body right. And so how do we help them become more aware is really important. Now I’ve served in the disability advocacy role for 22 years and I love it. I love being of service in this population and have I think been very successful in lifting people to be able to find their own voice which is really why I do what I do. And becoming a member of the Nevada legislature for me was about bringing the disability community into the legislative body very differently than they had ever been represented. And so, I think that’s what I bring with me in my legislative role. Many of my colleagues now come to me and say hey what about this. How can I include the disability community when I work on this piece of legislation. How could I word this differently in order to really do something better. And so, I think that they really all want to do good work to support you know our constituents collectively including the members of our disability community.


Ed:     Well, that’s great to hear that you are getting so much feedback and requests for advice. So, you were talking about you work with people I understand with intellectual disabilities. Thinking about that experience, has that shaped the way that you think states can actually support and expand opportunities for people with disabilities?


TBM:Absolutely. My work alongside people with intellectual developmental disabilities has shaped pretty much everything in my life right. How I come at the world is very different as a result of that work. I see capability where others see barriers and so I see that we can solve for X if you have the mathematician in the room. A lot of people don’t even know the equation exists and so I think that that has shaped so very much of what I do in public policy. So much so that while we’ve often had the conversation about ability one employment right. Like how do we employ people with disabilities in federal contracting or sub-minimum wages and the antiquated sheltered workshops right. How do we take those infrastructure and evolve them to serve the population today because that population still needs a level of service as an equal member of our community in our society. So how do we help prove success. Taking that knowledge and that experience and bringing it into our legislative body, we recreated this sub-minimum wage transition bill in Nevada last session and it passed beautifully with no opposition because we brought alongside all the interested parties in order to create the solution for long-term support services while without displacing the people that we are intended to serve. So, Nevada is officially going to be in another session every person working in Nevada will receive at least minimum wage and many, many times higher than that. But we did it alongside the provider network instead of attacking, we are collaborating and I think that is what I have through the disability community really understanding.


           TM:  23:38


Ed:     As we wrap up, I wonder if you have any advice to your colleagues around the Country who might either want to better understand this issue or might want to get active in this policy area.


TBM:I do. Absolutely. There are so many wonderful organizations that are serving populations you know throughout our Country. They are the best resource. I have the honor to chair the non-profit legislative caucus here in Nevada. We have seven members that are non-profit leaders in Nevada right. And so, coming from the non-profit sector, those folks really want to educate legislators and show us you know what their needs are. So, for members across our Country that want to become more informed about disability advocacy in particular, I would say go find a non-profit in your local community and ask them what’s important to them and how can you support their members. It doesn’t matter if you are in the deaf community, the blind community, the community of people with physical disabilities, intellectual or developmental disabilities, veterans with traumatic brain injuries you know wartime disabilities. Whatever it is. Whatever the area that interests you is, that’s the best place to go is go to the people who are serving that population everyday and ask them how you can be helpful. And then I would say if you are curious about what its like to be blind or to have low vision then use a blindfold and try it right. Get in a wheelchair and try to navigate your community every day and see what are your barriers. By physically experiencing some of the barriers even for a short amount of time, I think it helps us build empathy and compassion and then helps us want to problem solve differently. So that’s really my advice to any member who wants to get involved in this space. And then I would say NCSL is a great resource right. NCSG is a great resource. Meeting with other members around the Country that have like interests is another great way to do it. But my most important thing is to know that even as a legislator, I don’t have the answer. So let the community dictate what the right answer is for them. That’s the most important thing. We still have people who don’t have access to Capital Hill because of steps. How do we get through that so that we are building universal design and accessibility for everyone. Folks who have behavioral support needs and folks who don’t right. And so, I think that’s where we need to get to. Go experience it and ask. Don’t be afraid to not know.


Ed:     Well, it seems like we’ve come a long way, but I think like a lot of things, there is probably still a long way to go. Assemblywoman, thank you so much. I really appreciate your time and your expertise on this.


TBM:Thanks. It’s my pleasure to be here. I appreciate the opportunity. 


Ed:     I’ve been speaking with Attorney Eve Hill and Assemblywoman Tracy Brown-May in Nevada about the American for Disabilities Act and how the interpretation of the law has changed over the decades. Thanks for listening.


           TM:  27:30


You can check out all the podcasts from the National Conference of State Legislatures by searching for NCSL podcasts wherever you get your podcasts. This podcast “Our American States” dives into some of the most challenging public policy issues facing legislators. On “Across the Aisle” host Kelley Griffin tells stories of bipartisanship. Also check out our special series “Building Democracy” on the history of legislatures.